Supreme Court of the United States Commons^™

The Misguided Use Of The Harvard/Unc Ruling To Thwart Law Firm And Other Private Employer Dei Efforts, Ronald A. Norwood

SLU Law Journal Online

This article explores the Harvard/UNC ruling and what, in the author’s view, is the misguided efforts by certain political and well-financed private actors to use that ruling to justify the eradication of private employers and law firm DEI efforts. It is the author’s firm belief that because the Supreme Court’s holding is limited to an analysis of the Constitution’s Equal Protection clause (limited to state actors) and Title VI (covering private actions receiving federal funding), that ruling should not be used by courts to quash DEI programs designed to level the employment playing field for minorities, women and other protected …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq

Journal of Race, Gender, and Ethnicity

This article will discuss in detail exactly how the court is illegitimate and makes decisions that are illegitimate, using examples from the October 2021 term. It will also explain why action needs to be taken immediately to reign in this run-away Court to restore public trust. As discussed herein, we cannot sit by and patiently wait for the Court to right itself over time because there are important issues on the current docket, such as race-conscious admissions policies of colleges and universities to ensure student bodies are diverse as future leaders are prepared to live and work in a diverse …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

All Faculty Scholarship

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

Corporate Personhood And Limited Sovereignty, Elizabeth Pollman

All Faculty Scholarship

This Article, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as rights-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their …

Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert

UF Law Faculty Publications

This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …

The 2020 Supreme Court Term In The Shadow Of Blm, Metoo, And The Notorious Rbg, Rachel A. Van Cleave

Publications

The upcoming Supreme Court term comes in the context of widespread protests about police violence, the criminal (in)justice system, continuing fallout from the #MeToo movement, and the death of iconic Supreme Court Justice Ruth Bader Ginsburg. The court has agreed to hear cases that involve the enduring white supremist legacy of a Louisiana law that allowed for non-unanimous jury criminal convictions, standards for evaluating excessive use of force by police, what is required to sentence a juvenile to life without parole, and military sexual violence.

It is imperative that the Court acknowledge the difficult truths that Black Lives Matter protesters, …

Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin

Pepperdine Law Review

Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …

Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations of …

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

All Faculty Scholarship

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

All Faculty Scholarship

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

The Tragedy Of Justice Scalia, Mitchell N. Berman

All Faculty Scholarship

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …

Intersectionality And The Constitution Of Family Status, Serena Mayeri

All Faculty Scholarship

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …

Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu

All Faculty Scholarship

Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

All Faculty Scholarship

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

All Faculty Scholarship

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff

All Faculty Scholarship

The Supreme Court’s decision in Scott v. Harris has quickly become a staple in many Civil Procedure courses, and small wonder. The cinematic high-speed car chase complete with dash-cam video and the Court’s controversial treatment of that video evidence seem tailor-made for classroom discussion. As is often true with instant classics, however, splashy first impressions can mask a more complex state of affairs. At the heart of Scott v. Harris lies the potential for a radical doctrinal reformation: a shift in the core summary judgment standard undertaken to justify a massive expansion of interlocutory appellate jurisdiction in qualified immunity cases. …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

All Faculty Scholarship

The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie

All Faculty Scholarship

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …

Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund

Faculty Scholarship

Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …

A Six-Three Rule: Reviving Consensus And Deference On The Supreme Court, Jed Handelsman Shugerman

Faculty Scholarship

Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.

One option is to establish the following rule: The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth …

Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely

Faculty Publications

In a recent article,' Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." Professor Chemerinsky also argues that given the current composition of the Court, "it is the value choices of the middle" - Justice O'Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that "[f]or better or worse, this really is the O'Connor Court." In reviewing the cases decided …